The opinion
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs December 6, 2005
BEN MILLS v. STATE OF TENNESSEE
Direct Appeal from the Criminal Court for Shelby County
No. P-27225 James C. Beasley, Jr., Judge
No. W2005-00480-CCA-R3-PC - Filed January 5, 2006
The petitioner, Ben Mills, appeals the denial of his petition for post-conviction relief from his first
degree murder, aggravated robbery, and attempted first degree murder convictions, arguing that the
post-conviction court erred in finding that trial counsel was not ineffective for failing to request a
jury instruction on voluntary intoxication. Having reviewed the record, we conclude that the
petitioner has failed to meet his burden of showing by clear and convincing evidence that he was
prejudiced as a result of any alleged deficiency in counsel’s representation. Accordingly, we affirm
the denial of the petition for post-conviction relief.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
ALAN E. GLENN , J., delivered the opinion of the court, in which THOMAS T. WOODALL and ROBERT
W. WEDEMEYER , JJ., joined.
James E. Thomas, Memphis, Tennessee, for the appellant, Ben Mills.
Paul G. Summers, Attorney General and Reporter; Seth P. Kestner, Assistant Attorney General;
William L. Gibbons, District Attorney General; and Nicole Duffin, Assistant District Attorney
General, for the appellee, State of Tennessee.
OPINION
FACTS
On December 7, 1998, the petitioner was convicted by a Shelby County Criminal Court jury
of one count of first degree premeditated murder, one count of first degree felony murder, one count
of aggravated robbery, and two counts of attempted first degree murder, for which he received an
effective sentence of life plus fifteen years. State v. Ben Mills, No. W1999-01175-CCA-R3-CD,
2002 WL 925260, at *1 (Tenn. Crim. App. May 3, 2002), perm. to appeal denied (Tenn. Nov. 15,
2004).
The evidence presented at the petitioner’s trial showed that early on the morning of April 12,
1995, the petitioner and a codefendant, Ashley Nesbitt, went to a Memphis apartment where a party
was taking place, knocked on the door, and, when no one answered, pushed their way inside
uninvited. Id. at **1-2. Upon entering the apartment, the petitioner and Nesbitt first inquired if
anyone had any drugs to sell. Id. When everyone present answered in the negative, the men turned
as if to leave but then spun around, pulled guns, and demanded that those inside drop their valuables
onto the floor. Id. As the valuables were being dropped, the petitioner and Nesbitt began shooting,
striking the victim, who later died of his injuries. Id. at *1.
One witness testified that she saw Nesbitt bent over the victim’s body picking up valuables
from the floor. Id. at *2. Another witness saw the petitioner and Nesbitt flee from the apartment to
a car outside, where a third armed man sat waiting. Id. at *1. Testimony from several different
witnesses established that the petitioner and Nesbitt were wearing different clothing when they were
arrested a short time after the shooting. Id. at **1-2. Yet another witness for the State, Carl Turner,
testified that the petitioner had been to the apartment the night before asking to buy drugs. Id. at *2.
Turner said that the petitioner appeared to be under the influence of cocaine at the time of the
shooting and that the first shot the petitioner fired was toward the ceiling. Id. On cross-examination,
he conceded he had told defense investigators that a man who was present in the apartment, whom
he knew as “Sean,” or “Four Four,” had a .44 Magnum which he had fired at Nesbitt when the
shooting started. Id. Turner explained, however, that he had not seen the weapon himself but
instead had been told by another man that Sean had fired a weapon during the robbery. Id.
The petitioner raised three issues on direct appeal: whether the evidence was sufficient to
sustain the convictions; whether the trial court erred by not instructing on all the lesser-included
offenses of felony murder; and whether the trial court erred by not instructing on voluntary
intoxication. Id. at *1. This court affirmed the convictions on appeal but modified the judgment to
reflect that the petitioner’s conviction for felony murder was merged into his conviction for
premeditated murder. Id. With respect to the issue of whether the trial court should have instructed
the jury on voluntary intoxication, we noted that “[w]hile the issue may have been fairly raised, the
[petitioner] did not request the instruction . . . and did not include the issue as grounds in his motion
for new trial.” Id. at *8. We concluded, therefore, that the trial court’s failure to issue the instruction
did not rise to the level of plain error. Id. Thereafter, the petitioner filed a pro se Rule 11 application
for permission to appeal to the supreme court, which was dismissed as untimely.
On March 24, 2003, the petitioner filed a pro se petition for post-conviction relief, alleging,
among other things, that he was denied the effective assistance of counsel. Following the
appointment of post-conviction counsel, the petitioner filed an amended petition on September 18,
2003, alleging that trial counsel was ineffective for, among other things, failing to request the jury
instruction on voluntary intoxication and failing to raise the fact the trial court did not instruct on
voluntary intoxication as an issue in his motion for new trial. The petitioner further alleged that
appellate counsel was ineffective for failing to file a Rule 11 application for permission to appeal
to the supreme court and for providing the wrong deadline for the application to be filed.
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At the April 2, 2004, evidentiary hearing, the petitioner testified that he was under the
influence of cocaine at the time of the offenses. He recalled that trial counsel had asked him if he
had been under the influence of an intoxicant when he committed the crimes, but he could not recall
what answer he had given counsel. The petitioner testified that appellate counsel had sent him a
letter informing him that he was withdrawing from his case. The petitioner indicated that, in that
letter, appellate counsel had provided him with the deadline for filing his pro se Rule 11 appeal. He
said, however, that when he tried to file his appeal within that deadline he learned that appellate
counsel had given him the wrong date and that his time for filing had already expired.
Appellate counsel testified that approximately 99% of his practice consisted of criminal
defense and estimated he had handled between fifteen and twenty-five murder cases during his
career. He confirmed that trial counsel did not raise the trial court’s alleged errors in jury
instructions in the motion for a new trial, which meant that appellate counsel had to request that
those issues be reviewed under the more stringent plain error standard. Appellate counsel identified
the letter he had sent to the petitioner informing him that he was withdrawing from representation.
He acknowledged he had erroneously told the petitioner that the sixty-day period in which to file an
application for permission to appeal to the supreme court began to run on May 3 and expired on July
26.
On cross-examination, appellate counsel testified he had not thought he would prevail on the
voluntary intoxication issue. He stated that in his experience it was hard to get jurors to feel
sympathy for a defendant based on a claim of voluntary intoxication. Nonetheless, he had believed
that an instruction on voluntary intoxication was required under the evidence and the law and said
he would have requested one had he been handling the case.
Trial counsel, called as a witness by the State, testified that he was licensed to practice law
in Oklahoma in 1971 and became licensed to practice in Tennessee in 1978. He said he practiced
law “[s]ome” and had handled “a few” murder trials. He stated he had taken over the petitioner’s
case from another lawyer, who had done a “meticulous job” on the motions. Trial counsel testified
that he added some motions of his own after taking over the case and that he believed he had argued
either fifty-three or fifty-six motions on one Friday afternoon.
Although trial counsel’s testimony on this topic was not entirely clear, he appeared to indicate
that he had not had many conversations with the petitioner prior to arguing the motions but that he
was able to interview him a number of times after the motions. Before divulging the substance of
those conversations, trial counsel requested that the post-conviction court instruct him about his
“duties under the attorney-client privilege.” When told it was the court’s position that the
petitioner’s ineffective assistance of counsel claim made “any communications or any dealings along
those lines . . . open for discussion,” trial counsel informed the court that the attorney-client
privilege was “really very important” to him, that he did not like to violate it, and that he had been
“unable to get a hold of the Board of Professional Responsibility” and would follow the post-
conviction court’s advice. Trial counsel then testified that the petitioner’s main defense was that he
had been involved in a “failed drug deal” which had ended in a “shootout,” with gunfire exchanged
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on both sides. Trial counsel said the physical evidence, which showed bullet holes on both ends of
the apartment, corroborated that claim and he had put on an expert witness to that effect.
Trial counsel testified that none of the evidence he had at trial, including the information he
had from the petitioner, indicated that the petitioner was under the influence of any intoxicant at the
time of the offenses. He acknowledged, however, that one of the State’s witnesses had testified that
the petitioner’s eyes had been “jiggling or something like that.” Asked why he had not raised the
court’s failure to instruct on voluntary intoxication as an issue in his motion for a new trial, trial
counsel replied that he had been in possession of information at the time he drafted the motion which
made him believe that it would be both intellectually dishonest and unethical for him to raise
voluntary intoxication as an issue before the court.
After being asked on cross-examination to read aloud from a portion of the trial transcript
containing Carl Turner’s testimony, trial counsel acknowledged that Turner had testified that he
believed the petitioner was on cocaine at the time of the offenses. Trial counsel further
acknowledged he had cross-examined Turner about that statement in an attempt to show that the
petitioner had not, in fact, been under the influence of cocaine. Counsel explained he had believed
that a defense of voluntary intoxication was inconsistent with his defense strategy of attempting to
prove it had been a case of a “drug-deal-gone-bad.” He testified he asked the petitioner if he had
been “high” and, to the best of his recollection, the petitioner answered that he had not. Trial counsel
stated he thought it would have been unethical and intellectually dishonest for him to have requested
a jury instruction that he knew was not truthful and that did not have an adequate foundation in fact.
On April 30, 2004, the post-conviction court entered an order granting the petitioner a
delayed appeal to the supreme court due to evidence that the petitioner had relied on the erroneous
deadline given by appellate counsel for filing his Rule 11 application. On November 15, 2004, our
supreme court denied the petitioner’s delayed application for permission to appeal, and on February
11, 2005, the post-conviction court entered an order denying the petition for post-conviction relief.
Among other things, the post-conviction court noted that the overwhelming proof at trial had been
that it was a planned robbery which resulted in the death of the victim; that there was no evidence
as to the degree of intoxication, if any, under which the petitioner had operated or that his alleged
intoxication prevented him from forming the plan for the robbery; and that trial counsel had testified
that his defense theory had not included a claim of intoxication but instead had hinged on proving
that it had been a drug deal that had gone wrong, forcing the petitioner to shoot in self-defense. The
post-conviction court’s order states in pertinent part:
The defense theory was that this was a drug deal that went wrong and the
defendant/petitioner was acting in self defense with the shooting occurred. [Trial
counsel] testified that the only proof of any such impairment came from one witness
who stated that the petitioner acted like he might have been on cocaine. Trial counsel
said he felt it would be unethical to request such a charge when his entire case and
all his conversations with the petitioner were that he was not under the influence of
anything. Their theory was that he was not under the influence. Because the issue
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was not raised by trial counsel in the motion for a new trial it was reviewed on appeal
under the plain error theory and was found wanting by the Court of Criminal
Appeals. The petitioner is charged on a petition for post conviction relief with the
burden of proving that “but for” such an omission by trial counsel the outcome of his
trial might have been different. The proof at trial was overwhelming that this was a
planned robbery and during the course thereof the victim was killed. No proof was
offered that the degree of intoxication of the petitioner, if in fact at all, impaired or
affected his ability to carry out the aggravated robbery which resulted in subsequent
death for the victim. Based on trial counsel’s testimony that it was their theory of the
case that the petitioner was not under the influence and that said theory was based
upon petitioner’s own statements to trial counsel, this court is of the opinion that
failure to request a jury instruction for voluntary intoxication was not ineffective
representation by trial counsel and this issue has no merit.
Thereafter, the petitioner filed a timely appeal to this court, raising as his sole issue whether
the post-conviction court erred in finding that trial counsel was not ineffective for failing to request
the instruction on voluntary intoxication.
ANALYSIS
The post-conviction petitioner bears the burden of proving his allegations by clear and
convincing evidence. See Tenn. Code Ann. § 40-30-110(f) (2003). When an evidentiary hearing
is held in the post-conviction setting, the findings of fact made by the court are conclusive on appeal
unless the evidence preponderates against them. See Tidwell v. State, 922 S.W.2d 497, 500 (Tenn.
1996). Where appellate review involves purely factual issues, the appellate court should not reweigh
or reevaluate the evidence. See Henley v. State, 960 S.W.2d 572, 578 (Tenn. 1997). However,
review of a trial court’s application of the law to the facts of the case is de novo, with no presumption
of correctness. See Ruff v. State, 978 S.W.2d 95, 96 (Tenn. 1998). The issue of ineffective
assistance of counsel, which presents mixed questions of fact and law, is reviewed de novo, with a
presumption of correctness given only to the post-conviction court’s findings of fact. See Fields v.
State, 40 S.W.3d 450, 458 (Tenn. 2001); Burns v. State, 6 S.W.3d 453, 461 (Tenn. 1999).
To establish a claim of ineffective assistance of counsel, the petitioner has the burden to show
both that trial counsel’s performance was deficient and that counsel’s deficient performance
prejudiced the outcome of the proceeding. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct.
2052, 2064, 80 L. Ed. 2d 674 (1984); see State v. Taylor, 968 S.W.2d 900, 905 (Tenn. Crim.
App.1997) (noting that same standard for determining ineffective assistance of counsel that is
applied in federal cases also applies in Tennessee). The Strickland standard is a two-prong test:
First, the defendant must show that counsel’s performance was deficient. This
requires showing that counsel made errors so serious that counsel was not
functioning as the “counsel” guaranteed the defendant by the Sixth Amendment.
Second, the defendant must show that the deficient performance prejudiced the
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defense. This requires showing that counsel’s errors were so serious as to deprive the
defendant of a fair trial, a trial whose result is reliable.
466 U.S. at 687, 104 S. Ct. at 2064.
The deficient performance prong of the test is satisfied by showing that “counsel’s acts or
omissions were so serious as to fall below an objective standard of reasonableness under prevailing
professional norms.” Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996) (citing Strickland, 466 U.S.
at 688, 104 S. Ct. at 2065; Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975)). The reviewing court
must indulge a strong presumption that the conduct of counsel falls within the range of reasonable
professional assistance, see Strickland, 466 U.S. at 690, 104 S. Ct. at 2066, and may not second-
guess the tactical and strategic choices made by trial counsel unless those choices were uninformed
because of inadequate preparation. See Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982). The fact
that a strategy or tactic failed or hurt the defense does not alone support the claim of ineffective
assistance of counsel. See Thompson v. State, 958 S.W.2d 156, 165 (Tenn. Crim. App. 1997). The
prejudice prong of the test is satisfied by showing a reasonable probability, i.e., a “probability
sufficient to undermine confidence in the outcome,” that “but for counsel’s unprofessional errors,
the result of the proceeding would have been different.” Strickland, 466 U.S. at 694, 104 S. Ct. at
2068.
The petitioner contends that counsel’s failure to request the instruction on voluntary
intoxication resulted not from an informed trial strategy but instead from counsel’s “complete
misunderstanding of his role as an advocate.” He argues that trial counsel failed to comprehend the
difference between presenting perjured testimony and requesting a favorable jury instruction which
may or may not have comported with counsel’s version of the facts but which nonetheless was
supported by the evidence presented at trial. The petitioner contends that, as such, counsel’s
decision not to request the jury instruction was unreasonable and constituted a deficiency in
representation.
At the evidentiary hearing, trial counsel repeatedly stated that he believed it would have been
both unethical and “intellectually dishonest” for him to request an instruction on voluntary
intoxication when none of the information he had gathered about the case, including information
from his client, supported such an instruction. The following exchange is illustrative:
THE COURT: Let me interrupt, just so I make sure I understand this train of
thought. If you recall, [trial counsel], was it your point in cross examining this man
[Turner] to try to prove that [the petitioner] was not under the influence of cocaine?
THE WITNESS: Well, Your Honor, if we have a defense of a drug-deal-
gone-bad and if we have a defense [of] people shooting at our client and our clients
attempting to save their life, then how can I possibly put in, number one, knowing it
to be false, knowing it to be perjury, and, number two, logically that my client is high
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on cocaine, when I’m trying to save him from a murder conviction. Because our only
defense is this is a drug deal gone bad and that our clients were attacked.
THE COURT: So it was your position that your client was not under the
influence of cocaine?
THE WITNESS: Absolutely. In fact, there were thirteen bullet holes --
fourteen bullet holes in the apartment, all over the apartment. It was clear that it was
a gun fight. We had the former head of MPD homicide in there testifying that it was
a gun fight. We had testimony about people jumping through plate glass windows,
hiding in closets, bullets going everywhere. I can’t possibly comprehend why I
would want to say, number one, something that is perjurious and, number two,
something that defeats the last chance my client has, and that is this was a gun fight
of a drug deal that went bad.
Q. Well, let’s talk about that for a second. You say it’s perjurious. Are you
telling us today -- because I’m unclear -- did [the petitioner], in response to a
question from you, say, [Trial counsel], I was not on cocaine. Did he tell you that?
A. He never got on the stand, sir.
Q. That’s exactly my point, sir. Would you agree with this, that voluntary
intoxication may negate the mental state as an element of the crime in first degree
murder?
A. As a black letter law, yes.
Q. Would you further agree that Mr. Turner’s testimony, that he appeared to be
on cocaine, when Mr. Turner said that he had been around people on cocaine, was
before the jury?
A. Yes.
Q. Well, how in the world would it have been perjury for you to argue, based on
the state’s proof, that a voluntary instruction on intoxication -- an instruction on
voluntary intoxication would be warranted? How would that be perjury?
A. Oh, I’m sorry if I used the word perjury on that. I think it’s both unethical
and intellectually dishonest when I know that my client was not on cocaine, at least
according to my client, number one, and, number two, my client won’t take the
witness stand.
Q. So your client told you, for the record now, that he was not on cocaine?
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A. In interviewing [the petitioner], I asked him when you went there, were you
high? And the answer to me was, to the best of my recollection, this is years ago, no.
....
Q. [Trial counsel], let me ask you, you would agree that at a murder trial, or any
trial for that matter, you’re not required to reveal client-attorney secrets?
A. That’s why I was so concerned about testifying today. That’s right. I don’t
like revealing secrets.
Q. Absolutely. Now, if the State of Tennessee, in their case in chief, puts forth
a witness that offers proof that your client was under the influence of an intoxicant,
and we know that, under the law, influence of an intoxicant may negate . . . certain
elements and mental state of certain crime[s], how would that be intellectually
dishonest to ask the judge to instruct on that?
A. First of all, I think it has been pointed out here that people who try cases
understand that juries don’t like that and don’t buy it, number one. Second, I don’t
think it’s ethical and I think it’s intellectually dishonest to ask for an answer when
you know that -- to ask for an instruction when you know it’s not a truthful
instruction with a factual foundation that’s adequate.
Based on the above-quoted exchange, we agree with the petitioner that trial counsel
apparently failed to appreciate the difference between knowingly using perjured testimony or false
evidence and requesting a jury instruction which was fairly raised by the evidence. At the time of
the petitioner’s trial, Tennessee operated under the Code of Professional Responsibility. Disciplinary
Rule 7-102, “Representing a Client Within the Bounds of the Law,” provided as follows:
(A) In the representation of a client, a lawyer shall not:
(1) File a suit, assert a position, conduct a defense, delay a trial, or
take other action on behalf of the client when the lawyer knows or
when it is obvious that such action would serve merely to harass or
maliciously injure another.
(2) Knowingly advance a claim or defense that is unwarranted under
existing law, except that the lawyer may advance such claim or
defense if it can be supported by good faith argument for an
extension, modification, or reversal of existing law.
(3) Conceal or knowingly fail to disclose that which the lawyer is
required by law to reveal.
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(4) Knowingly use perjured testimony or false evidence.
(5) Knowingly make a false statement of law or fact.
(6) Participate in the creation or preservation of evidence when the
lawyer knows or it is obvious that the evidence is false.
(7) Counsel or assist the client in conduct that the lawyer knows to be
illegal or fraudulent.
(8) Knowingly engage in other illegal conduct or conduct contrary to
a Disciplinary Rule.
Tenn. Sup. Ct. R. 8, DR 7-102 (1998) (emphasis added). In addition, Disciplinary Rule 7-106,
governing “Trial Conduct,” provided in pertinent part:
(C) In appearing in a professional capacity before a tribunal, a lawyer shall not:
(1) State or allude to any matter that the lawyer has no reasonable
basis to believe is relevant to the case or that will not be supported by
admissible evidence.
Tenn. Sup. Ct. R. 8, DR 7-106 (1998).
Tennessee Code Annotated section 39-11-503(a) provides that while intoxication is not in
itself a defense to prosecution, a defendant’s intoxication, whether voluntary or involuntary, is
admissible in evidence if it is relevant to negate a culpable mental state. However, as we noted in
our direct appeal opinion:
“Proof of intoxication alone is not a defense to a charge of committing a specific
intent crime nor does it entitle an accused to jury instructions ...; there must be
evidence that the intoxication deprived the accused of the mental capacity to form
specific intent . . . . The determinative question is not whether the accused was
intoxicated, but what was his mental capacity.”
Ben Mills, 2002 WL 925260, at *8 (quoting Harrell v. State, 593 S.W.2d 664, 672 (Tenn. Crim.
App. 1979)). A defendant has a constitutional right to an instruction on voluntary intoxication if
fairly raised by the proof. See State v. Williamson, 919 S.W.2d 69, 80 (Tenn. Crim. App. 1995)
(citations omitted).
The record reveals that Turner, who was called as a witness by the State, testified that he had
been around a number of individuals who used cocaine. He said he believed the petitioner was under
the influence of cocaine at the time of the offenses because his eyes were “real shiny” and he “wasn’t
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just really focused on whatever he caught himself doing that night.” Thus, evidence of the
petitioner’s intoxication was fairly raised by the State through the testimony of its own witness.
Moreover, Turner’s testimony suggested not only that the petitioner was on cocaine but also that it
impaired his ability to focus on what he was doing at the time of the offenses. Since the evidence
of intoxication was raised by a State witness, trial counsel would have been neither “knowingly using
perjured testimony or false evidence” nor alluding to a matter that he had no reasonable basis to
believe would be “relevant to the case” or that would not “be supported by admissible evidence” by
requesting an instruction on voluntary intoxication. This is true regardless of whether the petitioner
had specifically denied using cocaine in his interviews with counsel. Trial counsel’s concern that
it would have been unethical for him to have requested the jury instruction appears to have been
based on a misunderstanding of the law and his ethical responsibilities as an attorney. Lending
support to this conclusion is the concern that trial counsel repeatedly expressed at the evidentiary
hearing that his testimony would violate the attorney-client privilege, showing counsel’s apparent
failure to recognize that the petitioner had waived the attorney-client privilege by his claim of
ineffective assistance. Under such circumstances, trial counsel’s decision not to request the jury
instruction on voluntary intoxication on the basis that it would be unethical to do so was
unreasonable.
Trial counsel also testified, however, that he believed that an instruction on voluntary
intoxication would have undermined his trial strategy of attempting to prove that the shooting
occurred in self-defense. Given the defense’s position that the petitioner went to the apartment to
purchase drugs, we find it difficult to understand why counsel believed so strongly that an instruction
on voluntary intoxication would have defeated “the last chance” the petitioner had to prove that it
“was a gun fight of a drug deal that went bad.” Nonetheless, trial counsel, who was in the best
position to know, believed that voluntary intoxication would be incompatible with his trial strategy
of attempting to show that the shooting occurred in self-defense, and we decline to second-guess that
decision. See Strickland, 466 U.S. at 690, 104 S. Ct. at 2066; Hellard v. State, 629 S.W.2d 4, 9
(Tenn. 1982); see also James Rines v. State, No. 03C01-9606-CC-00210, 1997 WL 33654, at *4
(Tenn. Crim. App. Jan. 28, 1997), perm. to appeal denied (Tenn. June 2, 1997) (concluding that trial
counsel was not deficient for failing to develop defense of intoxication when she explained that
defenses of intoxication and self-defense were incompatible in the case). The petitioner has not,
therefore, met his burden of proving that counsel was deficient for failing to request the voluntary
intoxication instruction.
The petitioner has also failed to establish that he was prejudiced as a result of counsel’s
alleged deficiency in representation. To establish prejudice, the petitioner has the burden of proving
by clear and convincing evidence a reasonable probability that the outcome of the trial would have
been different had trial counsel requested the voluntary intoxication instruction. See Strickland, 466
U.S. at 694, 104 S. Ct. at 2068. As the post-conviction court observed, the State presented
overwhelming evidence to show that the crimes had been executed in accordance with a plan
formulated in advance of the time when the petitioner entered the apartment. We summarized and
analyzed the evidence against the petitioner in the direct appeal opinion as follows:
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The testimony at trial established that the [petitioner] and Nesbitt possessed
guns and fired several shots in the direction of the unarmed occupants of the Turners’
apartment. There was evidence of an armed lookout and getaway car driver waiting
in the parking lot at the time of the shooting. This suggests advanced planning of the
crime. Barbara Turner saw a calm Nesbitt standing over the fallen victim taking
money from the floor. While the defense established that Carl Turner had heard that
a man named Sean had retrieved his gun and fired at Nesbitt, Turner explained that
he had not seen Sean in possession of a weapon and had based his comment on
hearsay from a man identified as “Nausea.” Neither Sean nor “Nausea” testified at
trial. All other witnesses claimed that only the [petitioner] and Nesbitt were armed
and fired shots. The testimony also established that, when they were arrested shortly
after the shooting, both the [petitioner] and Nesbitt were wearing different clothes
than they wore while at the apartment. In addition, no weapons were found in the
car, indicating that the weapons had been disposed of after the shooting. When the
defendants were stopped by officers a short time later, Nesbitt was driving the car.
The jury rejected the defense theory that any other individual could have fired the
fatal shot, as was their prerogative. In our view, the evidence was sufficient to
support convictions for both felony murder and premeditated murder.
Ben Mills, 2002 WL 925260, at *4 (footnote omitted).
In the face of such evidence, which showed how the petitioner engaged in advanced planning
for the crimes and took steps immediately afterwards to conceal his involvement in the crimes, we
are unpersuaded that there is a reasonable likelihood that the jurors would have reached different
verdicts had the instruction on voluntary intoxication been given. The level of preparation and
planning evidenced in the case belies any claim of the petitioner’s not having been capable of
forming the requisite specific intent for the offenses.
CONCLUSION
Based on our review of the record, we conclude that the petitioner has not met his burden of
demonstrating he was denied the effective assistance of trial counsel. Accordingly, we affirm the
denial of the petition for post-conviction relief.
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ALAN E. GLENN, JUDGE
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